Zoners mellow out proposed city pot rules

Attorney advises against harsh, restrictive rules on medical marijuana sales

KINGMAN - The Kingman Planning and Zoning Commission on Tuesday voted to send a liberalized version of its proposed medical marijuana policies to public meetings next month, removing minimum size restrictions for marijuana dispensaries and opening them to the commercial zoning district.

Commissioners spent the better part of an hour discussing the ramifications of the state's new medical marijuana law with City Attorney Carl Cooper and Police Chief Robert DeVries. The law, which was narrowly approved by voters in last year's November election, will allow medical marijuana cultivators and dispensaries to open across the state, with individual cities and counties left to determine where they will go locally.

Cooper admitted that the law would probably result in a period of "growing pains" after it goes into effect April 1, with legal clashes likely between dispensary applicants and municipalities as each side tries to feel out the boundaries of what local governments can and cannot regulate. To avoid that happening here, he said, it would be in the city's best interest to adopt "reasonable" zoning standards for dispensaries. The only problem, he said, is that the definition of what is reasonable can vary greatly from person to person.

"This is something that was voted on as an initiative by the people, and the courts are very deferential to these sorts of things unless there are some clearly blatant violations," Cooper said. "So we have to be careful how far we go with this."

Cooper added that he saw no real problem with the commission's earlier discussions of limiting dispensaries to the I-2 industrial zoning district and cultivation facilities to the rural residential zoning district, with accompanying minimum distance requirements of 2,500 feet from schools, churches and substance abuse centers, so long as the ordinance still allows at least one dispensary to open somewhere.

"As long as you allow it to go somewhere, you're good," he said. "But you've got to allow it to go somewhere within the city limits. That's my interpretation."

Commissioner Kathleen Murray questioned commissioners' earlier discussions of establishing a 100-square-foot maximum size for dispensaries. Given the likelihood that dispensaries would have to conform to the Americans with Disabilities Act, she wondered whether that would even be possible for a 10-foot-by-10-foot building.

Cooper agreed that, in his opinion, that size limitation was unrealistically small, though he couldn't say what an appropriate size would be.

"Wouldn't we be subject to a legal challenge if we made it so it was impossible to have one?" Murray asked.

"Yes," Cooper replied. "Which is why I say, if you're going to do size, it should be a reasonable size, because if you do something extraordinary that restricts it so much that someone couldn't do it, when we get sued, we'll lose."

Cooper also made it clear that, while commissioners could regulate the zones dispensaries and cultivators could go in, they could not restrict the number of facilities that could open. Dispensaries, he said, would be limited by the state Department of Health Services, but he didn't believe cultivators would be restricted to a given number, nor would they necessarily have to grow for local dispensaries.

Commissioner Scott McCoy questioned how the city could legally endorse medical marijuana facilities at all if marijuana was still illegal under federal law. Cooper explained that, not only did the state's citizens vote for it, but the state's current understanding with the Drug Enforcement Agency is that the federal government has no plans to pursue people who adhere to the Arizona law.

"They're not going to be prosecuting the person carrying two and a half ounces," Cooper said. "My brother's with ICE (Immigration and Customs Enforcement) and he does drug enforcement. He can't get the federal prosecuting attorneys to touch anything less than 500 pounds. So, this is a non-issue - they have limited resources and they've already indicated they're not coming in."

He further assured commissioners that they would not be subject to any legal action for passing zoning regulations allowing medical marijuana in the city. He could not, however, answer chairman Matt Ladendecker's question as to whether the commission could explicitly require dispensaries and cultivation facilities to be separate from one another, rather than under one roof, as has been proposed by local David Clark, who hopes to open a dispensary in Kingman once the law takes effect.

"We can try and see what happens," Cooper said.

Police Chief DeVries suggested that allowing cultivation and dispensing under the same roof would actually be the best option from his perspective, since it would minimize transportation as well as the potential for marijuana to get "lost" on its way to the dispensary. He added that not allowing a dispensary within 25 miles would open the community to the possibility of multiple grow operations for personal use, which could also result in increased trafficking throughout town.

"Keeping the focus in one location is better in our perspective," he said. "It would allow our staff to focus their attention in one area versus multiple operations, and potentially multiple victims."

Ultimately, commissioners agreed to remove the maximum size requirement for dispensaries and expand their allowable zoning to I-1 and I-2, as well as in the C-3 zoning district under conditional use permit. They also agreed to incorporate language that prohibits medical marijuana cultivation in certain existing allowed commercial facilities such as greenhouses and plant nurseries.

Commissioners did not, however, appear to address the issue of whether to allow cultivation on the same premises as dispensaries, meaning cultivation would still only be allowed in Rural Residential zones. When approached about this after the meeting, one commissioner suggested that detail could be worked out at next month's public hearing on the issue.

McCoy made the motion to submit the new changes to the zoning ordinance, with Sandi Reynolds seconding. The motion passed 6-0, with Craig Schritter excused from the meeting.